Links between the Water Framework Directive and Nature Directives. Frequently Asked Questions. Environment. istockphoto

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1 Links between the Water Framework Directive and Nature Directives Frequently Asked Questions istockphoto Environment

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3 Links between the Water Framework Directive (WFD 2000/60/EC) and Nature Directives (Birds Directive 2009/147/EC and Habitats Directive 92/43/EEC) Frequently Asked Questions

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5 Foreword This paper discusses the links between EU water and EU nature legislation based on a set of frequently asked questions. It has been developed in a bottom-up approach responding to questions arising from practical implementation. It should serve as a working tool for the implementation of the relevant directives in a harmonised and integrated approach. It has been developed in cooperation of the nature unit (ENV.B.3 Nature), the water unit (ENV.D.1 Water) and the legal units (ENV.A.1 Enforcement, infringements coordination and legal issues, and ENV.A.2 Compliance promotion, governance and legal issues) of DG Environment. It has been consulted with Member States and stakeholders in two rounds of consultations (in 2009 and 2010). Version 3.4 (June 2010) served as a key background document for the workshop on 'Biodiversity and Water: Links between EU nature and water legislation' held in June 2010 in Brussels. This document (December 2011) has integrated all comments received after the workshop and has led to a more in-depth analysis of the questions. As requested by workshop participants two additional chapters have been drafted, 1) on groundwater dependent terrestrial ecosystems and 2) on the links with the Floods Directive. These will be consulted separately and integrated into the current document once they have been finalised. In addition, a frequently asked questions document has been developed on the links between the EU Marine Strategy Framework Directive and nature legislation. This document was presented for consultation to an expert group dealing with marine Natura 2000 at the end of October On the basis of comments received a revised version is being prepared. It is intended to merge the documents on freshwater, marine and biodiversity into one document once the consultations have been finalised. The current document should therefore be considered to be a living document until all parts have been finalised. December

6 Acknowledgements This paper has been prepared by colleagues at DG Environment. Leaders of the activity: Ursula Schmedtje Unit D.1 Protection of Water Resources François Kremer Unit B.3 Nature Contributions (in alphabetical order): David Grimeaud Unit A.1 Enforcement, Infringements coordination & legal issues Nicola Notaro Unit D.1 Protection of Water Resources Linda Nylund Unit A.2 Compliance promotion, governance & legal issues Jorge Rodriguez Romero Unit D.1 Protection of Water Resources Angelika Rubin Unit B.3 Nature Menno Verheij Unit A.1 Enforcement, Infringements coordination & legal issues Patrick Wegerdt Unit A.2 Compliance promotion, governance & legal issues 6 December 2011

7 Contents 1 Introduction and aim of this paper WFD and BHD objectives and their links Which Natura 2000 areas does the WFD address? Which are the links between the objectives of WFD and BHD? If there are two different objectives for a water body, which one applies? By when must the BHD and WFD objectives for water-dependent Natura 2000 sites be reached? Differences in the scope of WFD and BHD Which are the objects / management units addressed in the directives? What is the difference between the species / biological quality elements addressed in WFD and BHD? What is the relationship between good ecological status/potential of the WFD and favourable conservation status of the Habitats Directive? Can a protected species or habitat be in a favourable conservation status even if the water body in which it occurs is not in good ecological status/potential? How are WFD reference conditions / reference sites related to favourable conservation status / protected areas of BHD? Designation of heavily modified water bodies and use of exemptions/derogations in water-dependent Natura 2000 sites Which exemptions under WFD can be applied in Natura 2000 sites? How do the specific provisions of WFD Art. 4.3 apply to Natura 2000 sites? Is there a relationship between HD Art. 6.3 & 6.4 and WFD Art. 4.7? Coordination of WFD and BHD implementation Can the monitoring schemes of WFD and HD be integrated? How can the river basin management plans of WFD and the conservation measures / management plans of the HD be linked? Can public participation of management plans under BHD and river basin management plans under WFD be joined?...31 December

8 1 Introduction and aim of this paper The Birds and the Habitats Directives (BHD) together form the backbone of the EU s biodiversity policy as they protect Europe s most valuable species and habitats. The protected areas designated under these directives form the Natura 2000 network. Together with the Directives species protection requirements they are the central tool for bringing protected species and habitats into a favourable conservation status besides other existing tools. The aim of the Water Framework Directive (WFD) is to establish a framework for the protection of all surface waters and groundwater with the aim to reach good status in all waters as a rule by Both the nature directives and the WFD aim at ensuring healthy aquatic ecosystems while at the same time ensuring a balance between water/nature protection and the sustainable use of nature's natural resources. Indeed there are many synergies as the implementation of measures under the WFD will generally benefit the objectives of the nature directives. Nonetheless, the implementation of these directives in practice has lead to a number of questions where both directives are concerned. A number of guidance documents have been produced to assist and harmonise the implementation of BHD and WFD throughout the European Union: Within the framework of BHD, guidance has been developed for the interpretation of habitat types in the Interpretation Manual of European Union Habitats which was approved by the Habitats Committee and published by the European Commission. In addition, the Habitats Committee approved common methodologies on the assessment of the conservation status of species and habitats that have been developed in the context of the national reports on the implementation of measures taken under the HD (so called Article 17 reports). The Commission has also published extensive guidance on managing Natura 2000 sites, assessing plans and projects significantly affecting Natura 2000 sites, applying compensatory measures, interpreting concepts such as alternative solutions, imperative reasons of overriding public interest, overall coherence of the Natura 2000 network, and implementing the strict protection of animal species of Community interest under the Habitats Directive. For the WFD, technical documents are produced through the 'Common Implementation Strategy' (CIS), an informal consultation mechanism involving the European Commission, Member States, Accession Countries, Norway, stakeholders and non-governmental organisations. The documents produced under the CIS represent an informal consensus on best practice agreed by all partners. Several guidance documents have been produced that are linked with issues of concern under the BHD (e.g. CIS Guidance Document No. 2, 4, 12, 13 and 20, see list below), but no guidance so far has addressed the specific questions related to the implementation of WFD in Natura 2000 sites. This paper compiles some frequently asked questions raised by implementing authorities and stakeholders and provides detailed answers. The paper was prepared by DG Environment (B.3 Nature, D.1 Water, A.1 Enforcement, infringements coordination and legal issues and A.2 Compliance promotion, governance and legal issues). The sources of information used to prepare this note were the following: Discussions at workshops and project reports: CIS Workshop 'Biodiversity and Water Links between EU nature and water legislation', June 2010, Brussels, Belgium 1. Symposium organised by the German Federal Agency for Nature Conservation (BfN), the German Federal Environment Agency (UBA) and the Federal Ministry for Environment, Nature Conservation and Nuclear Safety: 'Biodiversity of surface waters, floodplains and groundwater' Germany; October 2008, Bonn, Germany. Workshop organised by Eurosite/Natural England: Integration of the Water Framework Directive and Natura 2000, September 2008, Peterborough, United Kingdom. 1 Workshop Report available at: ailed&sb=title 8 December 2011

9 Workshop organised by Paralia Nature: Natura 2000, the Water Framework Directive and the EU Marine Strategy, 7-8 October 2008, Brussels, Belgium. Workshop organised by Paralia Nature: Natura 2000 Management plans in development: timing, nature restoration measures and project licensing, 9-10 April 2008, Brussels, Belgium. Synergies in WFD implementation in the Wadden Sea - Report from the trilateral workshop, Hamburg; October 2007 Version , prepared by the Common Wadden Sea Secretariat, Wilhelmshaven. HARBASINS Project ( ): Harmonised River Basins Strategies for the North Sea. Interreg IIIB North Sea Programme. Workshop Eurosite/ Landeslehrstätte für Naturschutz und Landschaftspflege: Integration of the Water Framework Directive and Natura 2000, 8-11 May 2005, Lebus (Brandenburg State Education Centre for Conservation), Germany. Guidance documents and other EC information sources: CIS Guidance Document No.12: The Role of Wetlands in the Water Framework Directive 2 CIS Guidance Document No.13: Overall Approach to the Classification of Ecological Status and Ecological Potential 2 CIS Guidance Document No. 2: Identification of Water Bodies 2 CIS Guidance Document No. 4: Identification and Designation of Heavily Modified and Artificial Water Bodies 2 CIS Guidance Document No.20: Exemptions to the Environmental Objectives 2 Commission Guidance Document on the management of Natura 2000 sites under Article 6 of the Habitats Directive 3 Commission Guidance Document on the implementation of the protection regimes under Article 12 of the Habitats Directive 4 Other EC sources such as the WISE Water Notes These sources of information were complemented with questions received from stakeholders (Navigation Task Group, Natural England ) and personal questions that arose during the recent work on estuaries, waterways and port related activities. This paper addresses "aquatic ecosystems and, with regard to their water needs, terrestrial ecosystems and wetlands directly depending on the aquatic ecosystems" (Art.1.(a) WFD). Other terrestrial ecosystem that depend on water but not necessarily on aquatic ecosystems such as bogs or alluvial meadows so far have not been considered in this paper but may be included at a later point in time. 2 WFD and BHD objectives and their links 2.1 Which Natura 2000 areas does the WFD address? Article 1 (a) of the WFD clearly mentions the protection and enhancement of the status of aquatic ecosystems and with regard to their water needs also the protection of terrestrial ecosystems and wetlands directly depending on them. In Article 6.1, the WFD stipulates the establishment of a register of protected areas "which have been designated as requiring special protection under specific Community legislation for the protection of their surface water and groundwater or for the conservation of habitats and species directly depending on water". The register must contain i.a. "areas designated for the protection of habitats or species where the maintenance or improvement of the status of water is an important factor in their protection, including relevant Natura 2000 sites " (Annex IV, (v) WFD). 2 The CIS Guidance Documents for the implementation of the Water Framework Directive are all available at: 3 See: 4 See: December

10 Any Natura 2000 site with water-dependent (ground- and/or surface water) Annex I habitat types or Annex II species under the Habitats Directive or with water-dependent bird species of Annex I or migratory bird species of the Birds Directive, and, where the presence of these species or habitats has been the reason for the designation of that protected area, has to be considered for the register of protected areas under WFD Art These areas are summarised as "water-dependent Natura 2000 sites". For these Natura 2000 sites, the objectives of BHD and WFD apply. Besides protected areas "which have been designated as requiring special protection under specific Community legislation for the protection of their surface water and groundwater" Art. 6.1 WFD explicitly mentions areas which have been designated as requiring special protection (under specific Community legislation) "for the conservation of habitats and species directly depending on water". Annex IV WFD requests Member States to include besides relevant Natura 2000 sites protected areas if they have been "designated for the protection of habitats or species where the maintenance or improvement of the status of water is an important factor in their protection". Therefore, protected areas that have been designated only for national purposes can be included in the register in order to ensure that the waterrelevant objectives of the WFD are contributing to the protection of species and habitats. This makes sense because the Birds and Habitats Directives also contain provisions for habitats and species occurring outside Natura 2000 sites (see provisions of Art. 3 and 5 of BD and Art. 12 & 13 and Annex IV of HD) and these provisions must also be taken into account when implementing the WFD. It is up to the Member State to decide which areas under national protection fulfilling the above requirements should be included. The register of protected areas was to be completed by the end of 2004 and now needs to be kept under review and up to date by the Member State (Art. 6.3 WFD). 2.2 Which are the links between the objectives of WFD and BHD? The ultimate objective of the Habitats Directive is to protect, maintain or restore at favourable conservation status selected species and habitats of Community importance and to ensure a coherent network of special areas of conservation (Natura 2000 sites). The main objectives of the WFD for surface waters are 1) to prevent the deterioration of any status, 2) to reach good ecological status and good chemical status (good ecological potential and good chemical status in artificial and heavily modified water bodies) as a rule by 2015, and 3) to implement all necessary measures to progressively reduce pollution from priority substances and ceasing or phasing out emissions, discharges and losses of priority hazardous substances. This refers to all surface water bodies, including those that form part of a Special Protection Area (SPA) under the Birds Directive and/or a Site of Community Importance (SCI) under the Habitats Directive. With regard to protected areas Art. 4.1.(c) WFD stipulates that Member States shall achieve compliance with any standards and objectives... specified in the Community legislation under which the individual protected areas have been established. For groundwater, the main objectives of the WFD are to reach good quantitative status and good chemical status in all groundwater bodies. The definition of good status for groundwater bodies includes not only the protection of the proper groundwater, but also the protection of directly dependent surface water and terrestrial ecosystems (WFD Annex V, and 2.3.2). This means that the chemical composition and the level of groundwater need to be such as to ensure that objectives in those dependent ecosystems are met. The concept of ecosystems directly depending on groundwater has to be understood in a broader sense. These ecosystems do not necessarily have to be within protected areas under Community legislation but they can include habitats and species protected under the HD for which favourable conservation status must be achieved. 5 See CIS Guidance No. 12 on wetlands, section December 2011

11 Case study Ecological criteria for the identification of water-dependent Natura 2000 sites (UK) The process to be adopted by Member States to derive water-dependent Natura 2000 sites for inclusion in the Register of Protected Areas is clearly set out in Article 6 of the WFD. The application of the process hinges on the interpretation of the term water-dependent. Uttley (2010) describes some ecological criteria developed and applied in the UK for identifying which species and habitats listed in the annexes of the BHD are water-dependent. For habitats, the following criteria were applied: Habitats which consist of surface water or occur entirely within surface water as defined in Article 2 of the WFD. Habitats which depend on frequent inundation by surface water, or the level of groundwater. Non-aquatic habitats which depend on the influence of surface water e.g. spray or humidity (i.e. bryophyte rich gorges). For species, the following criteria were applied: Aquatic species living in surface waters as defined in Article 2 of the WFD. Species with at least one aquatic life stage dependent on surface water (i.e. species that use surface water for breeding, incubation, juvenile development, sexual maturation, feeding or roosting including many BHD bird and invertebrate species). Species that rely on the non-aquatic but water-dependent habitats identified resulting from surface water inundation or groundwater level or the influence of surface water. The cross-referencing of BHD species and habitats identified using these criteria with the qualifying interest features of Natura 200 sites resulted in the definition of water-dependent Natura 2000 sites in the UK. A separate FAQ paper is being developed on links between marine N2000 sites and the Marine Strategy Framework Directive (MSFD). Details relating to marine SCIs/SACs and SPAs that are covered in the MSFD will be given there. Uttley, C (20010). The Water Framework Directive and the Habitats and Birds Directives. An overview of the legal and Technical Relationship. In: Conservation Monitoring in Freshwater Habitats: A Practical Guide and Case Studies. C. Hurford et al. (eds). In order to make Article 4.1.(c) on protected areas operational there is a need to identify the water related requirements to achieve favourable conservation status of habitats and species dependent on water. As Natura 2000 sites are protected areas under WFD, any aspect of ecological status that has direct influence on the possibilities of the protected area to contribute to the achievement or maintenance of the favourable conservation status of the habitats or species in their biogeographical region is relevant, including indirect effects on birds (if Special Protection Area (SPA) under the Birds Directive), HD Annex II species and HD Annex I habitats. The WFD does not change what Member States must achieve for the BHD, but it provides a joint framework for the implementation of measures needed by both WFD and BHD in water-dependent Natura 2000 sites. The objectives of the directives are closely related and special attention and coordination is needed where these directives are implemented in the same areas. The measures serving the BHD and WFD objectives need to be included in the river basin management plans required under Art. 13 WFD (see also FAQ No. 5.2) and should also be included in the management plans of the Natura 2000 sites. December

12 Case study Pan-European Wetland Inventory (Italy) The majority of wetland types are dependent for their water supply on either surface or groundwater bodies. As such these wetland types would be termed water-dependent with respect to the WFD. The integrity of water-dependent wetland types is linked in large part to the quantity and quality of their water supply and the WFD provides the principal mechanism for safeguarding this. The biodiversity value of wetlands is acknowledged as significant and the conservation of wetlands in the primary purpose of the Ramsar Convention and many wetlands types are protected by the BHD. The Mediterranean Wetlands Initiative of the Ramsar Convention (MedWet), as a permanent network of collaboration and provision of scientific knowledge to all Mediterranean countries for the wetlands protection, has launched the Pan Mediterranean Wetland Inventory (PMWI). The purpose of the Inventory is to provide regions with a tool that will support decision making on regional development activities, based on the knowledge of the distribution of water related ecosystems in their territory, the benefits they provide to people and the pressures they need to be protected from. The PMWI is an innovative web-hosted tool, providing easy to use information on the location, ecological characteristics and socio-economic importance of water related ecosystems. It is designed to assist in reporting for the WFD and BHD. The project will contribute to improving wetland management in line with goals adopted by European Union Member States. ISPRA (Institute for Environmental Protection and Research), in collaboration with the Italian Ministry of Environment (MATTM) and the Regional Agency for Environmental Protection of Tuscany (ARPAT), are realising a national wetland inventory as a contribution to the MedWet/PMWI project. More than 60 public authorities or administrations, NGOs, universities and research institutes are involved in the project to provide data and expertise. All these organisations are invited to share information about wetland values, best practices for wise use and methods for monitoring and management of water related ecosystems, in order to define guidelines of a national strategy for wetland conservation. The approach for the data analysis will be based on integration of both Ramsar and CBD Convention with the BHD, WFD and the Marine Strategy Framework Directive (MSFD). The data will be organised, customised and stored in the MedWet/PMWI as a source of information for reporting on the state of wetlands, producing rapid assessment of wetland status and values, proposing an appropriate integration of monitoring (according to art. 8 of WFD) and defining a strategy to conserve those environments. The analysis will take into account the aspect of ecosystem services and the synergies and conflicts between the WFD and BHD. Finally the guidelines for wetlands conservation will be based on case studies and shared by the representatives of the organisations taking part in the project. The overlapping of PMWI wetlands with the protected areas for the conservation of aquatic habitat and species of the Registers of Protected Areas (WFD art. 6) provides the opportunity to achieve a high level of integration between convention and EU directives as recommended by the River Basin Initiative (endorsed by the COP 5 of the CBD Decision V/2, May 2000). 2.3 If there are two different objectives for a water body, which one applies? According to WFD Article 4.1.(c) the WFD objective of good status may need to be complemented by additional objectives in order to ensure that conservation objectives for protected areas are achieved. Art WFD says that "where more than one of the objectives relates to a given body of water, the most stringent shall apply". This obviously refers to situations in which two objectives set in legislation affect the same matter. For example, if a certain concentration of phosphorus is needed to achieve good ecological status and a more stringent value is needed to achieve a site's conservation objectives, then the latter applies (for example see point 3.4). However, as it may not always be easy to decide whether the one objective fully covers the other, it is best to keep in mind the existence of both objectives. Moreover, the authorities need to determine precisely which objective is actually the more stringent objective, since the objectives in the WFD and 12 December 2011

13 the BHD are not defined in the same way. In the BHD the overall objectives refer to species and habitat types at the level of the biogeographical region, but also objectives are set on site level to achieve those, whereas the objectives of the WFD refer to water bodies (see also explanations given for FAQ 3.1). The objectives for a given water body resulting from the WFD and the Habitats and Birds Directives have to be aligned in order to assess which measures must be taken. There are exceptional cases that show that harmonisation of objectives between WFD and Natura 2000 is needed. Most problems occur in cases where artificially changed or created conditions have favoured Natura 2000 species but where those environmental conditions represent less than good ecological status of the WFD. In principle, restoration towards good ecological status prevails (= WFD objectives), because the whole ecosystem is benefiting and not only specific species or habitats. In such cases the objectives of Natura 2000 species or habitats should be brought in line with the objectives of the WFD. However, there may be exceptions in cases to this general rule may be when it would become impossible to maintain a species or habitat type of community interest at a favourable conservation status or, where necessary, to restore such a status on a national biogeographic scale when the more natural situation or processes would be restored. In this respect it is important to note that favourable conservation status of a species or habitat refers to the biogeographical region (in the Member State)and not to the site-level. Such exceptional cases surely deserve a case by case judgement. It is advisable to have a clear track record of how judgements are made and what were the considerations made that led to this judgement. In addition, there are cases where deterioration is the result of a restoration measure and should not be considered as a deterioration of status. Some examples to illustrate this are the following: - when restoring a WFD water body to make it more natural would lead to the loss of protected habitats or species which have developed in an artificially modified or managed environment (e.g. cut off ox-bows or freshwater marshes in a reclaimed area protected by an artificial flood bank); - when a compensation requirement under HD Art. 6.4 will lead to a water body type change (e.g. from a freshwater marsh to a tidal lagoon); - when managed realignment promoted by a shoreline management plan would lead to a change from an impounded (low turbidity freshwater) river to a saline, high turbidity transitional water body. In order to decide on the management objectives (under the WFD) it is important to look at what type of surface water it is and at its natural (reference) conditions. A surface water body type is characterised by a variety of different habitats and species and by its natural hydro- and morpho-dynamics. It should be possible to include the BHD protected habitats and species into the characterisation of the water body type as these cover all types of surface waters (the HD only covers selected habitats deserving special protection; there are about 30 habitat types in Annex I HD that are relevant for freshwater and coastal water including estuaries and lagoons). By using this approach a common view of the characteristics of water body types and their management objectives can be developed (for more information on reference conditions see FAQ 3.5). Where habitats or species are not characteristic of a water body type, their protection should not prevail over the restoration of the water body, unless they are important for the conservation status of a habitat or species of Community interest in the national biogeographical region. In order to achieve integration of provisions of WFD and BHD it is therefore recommended to use the water body type and its characteristics as guidance for setting joint objectives and agreeing on the management of the water bodies / Natura 2000 sites in order to achieve good/favourable status. It must be noted that the occurrence of species and habitats of community interest outside Natura 2000 sites should be considered as well as they also contribute to the overall conservation status. It is important to clearly establish the scope of application of any additional requirements. The measures under WFD and BHD need to be well coordinated (integrated planning approach) and included in the river basin management plans. December

14 Case studies Veluwerandmeren (Netherlands) The Veluwerandmeren or Randmeren-Oost is a single, large (c ha) and shallow (1.5 m mean depth) water system comprising three connected parts of an alkaline character in the centre of the Netherlands. The lake is designated as a heavily modified water body under the WFD because of an artificially managed water level (low in winter and high in summer) and physical modifications of the shoreline among other pressures. The system has recovered from a hyper-eutrophic to a mesoeutrophic state and is designated as a Natura 2000 site with conservation objectives for 2 aquatic macrophyte habitats, 2 fish species, 17 bird species (of which 5 appear on BD Annex I) and 1 mammal (a bat, Myotis dasycneme). To achieve Good Ecological Potential (GEP) in the Veluwerandmeren, a more natural water level fluctuation is considered necessary to allow proper reed marsh development to meet the requirements of the macrophytes and phytobenthos biological quality element. However, a change of the water level regime to a more natural situation would have negative effects for the designated water bird populations because the required extensive feeding areas are only available at low water levels. The predominantly short-necked herbivorous designated bird species require low water levels to be available at appropriate times throughout the year to sustain the population levels required by the conservation objectives. The water level regime is managed partly to facilitate this. The additional requirement for adequate flood protection has been used in the River Basin Management Plan to justify the existing managed water level regime that supports the conservation objectives for the designated birds species but results in a reduced likelihood of achieving GEP for the macrophytes and phytobenthos quality element, i.e. in this case the flood protection and the interest to conserve the birds have been considered more stringent than the GEP for the macrophytes and phytobenthos. Further information is available at: and download: Brondocumenten IJsselmeergebied Re-connection of oxbows and oxbow lakes to the recent river courses (Germany) As one of five pilot projects run by the Federal State of Brandenburg in order to gather necessary information and experience how to reach the objectives of WFD with optimum ecological and economic efficiency, the Krumme Spree resulted in a potential conflict between the objectives of the BHD and WFD. The Krumme Spree comprises a river system comprising a mature river system with oxbow lakes and a contemporary river channel. A hydromorphological assessment of the contemporary river channel resulted in a status assessment of 5 or 6 (classified as poor status) whereas the oxbow lakes were classified as 2 to 4 (good to moderate status). One proposed measure to improve the hydromorphological status and to contribute to floodplain restoration was to reconnect the oxbow lakes to the river channel. However, the Krumme Spree is also designated as a Natura 2000 site with habitat types 3150 Natural eutrophic lakes (for the oxbow lakes) and 3260 water courses of plain to mountain levels (for the river channel). The proposed reconnection of the oxbow lakes to the river channel to contribute to the achievement of the WFD objectives would destroy the former habitat type in contravention of the requirements Art 6.2 of the HD. This situation constitutes an apparent systematic contradiction between restoration of primary habitats and restoration of natural processes of rivers in order to reach the objectives of WFD and the approach of the HD to preserve a (secondary) habitat type 3150 in the long term (Favourable Conservation Status). Despite the apparent contradiction, oxbows will be re-connected in 14 places in the Krumme Spree. Further information is available at: 14 December 2011

15 2.4 By when must the BHD and WFD objectives for water-dependent Natura 2000 sites be reached? There is no specific date mentioned in the Birds and the Habitats Directives to reach the conservation objectives. The absence of a specific deadline in the Habitats Directive for achieving favourable conservation status does not imply that Member States need not improve the status over time as the HD is very clear in stipulating that Member States need to restore species and habitats to favourable conservation status in case they are not (Art. 4.4). In practice this means that Member States must clearly show progress in achieving favourable conservation status. In the recently published (3 May 2011) new biodiversity strategy "Our life insurance, our natural capital: an EU biodiversity strategy to 2020" includes a specific target (target 1) referring to the improvement of conservation status of habitat types and species (HD) and the status of bird populations (BD). TARGET 1: FULLY IMPLEMENT THE BIRDS AND HABITATS DIRECTIVES To halt the deterioration in the status of all species and habitats covered by EU nature legislation and achieve a significant and measurable improvement in their status so that, by 2020, compared to current assessments: (i) 100% more habitat assessments and 50% more species assessments under the Habitats Directive show an improved conservation status; and (ii) 50% more species assessments under the Birds Directive show a secure or improved status. Furthermore, "Member States shall take appropriate steps to avoid the deterioration of natural habitats and the habitats of species for which the areas have been designated" (HD Art. 6.2). Measures needed to avoid deterioration of BHD targeted natural elements must be implemented as soon as the sites are classified as SPA under the Birds Directive or formally adopted by the Commission as a site of Community importance under the Habitats Directive. In the period between the proposal of the Member State for inclusion of a site into the EC list of SCI and the relevant Commission Decision the Bund Naturschutz case-law 6 is relevant which implies that deterioration of ecological values needs to be avoided already at the time when a site is proposed by the Member State. Moreover, conservation status of habitats and species of the HD is assessed and reported every 6 years at the national biogeographical level. Article 17 requires Member States to report every six years about the progress made with the implementation of the Habitats Directive. As the main focus of the directive is on maintaining and/or restoring a favourable conservation status for habitat types and species of community interest, monitoring and reporting under the directive also focuses on this. In future also the progress reporting under the Birds Directive will be streamlined with this method. The reporting deadlines in the BHD equally apply to the water-dependent Natura 2000 sites identified under the WFD (included in the register under Art. 6 WFD). The conservation status of species and habitats under the HD has to be maintained and where necessary improved for the next assessment in The ultimate aim is to ensure or reach favourable conservation status for all protected habitats and species. The first assessment of their status was established in 2007 and overall it showed that the conservation status of habitats and species still has to be improved until the next assessment in The objectives of the Water Framework Directive need to be reached as a rule by "As a rule" means that there are certain exemptions possible. However, when applying for an extension of deadlines under the WFD, due account must be taken of possible consequences for achieving the objective under the Habitats Directive. In the following the provisions of Art. 4.1.(a) and (b) which refer to surface water and groundwater bodies and Art. 4.1.(c) which refers to protected areas will be dealt with separately. 6 ECJ-Ruling of 14 September 2006 (Bund Naturschutz Bayern - C-244/05) December

16 1) Provisions related to Art. 4.1.(a) WFD for surface water and (b) for groundwater bodies According to Art the WFD objectives for surface water and groundwater bodies need to be reached by 2015 at the latest. Exemptions are possible if certain conditions are met. The provisions of Art. 4.1.(a) and (b) are independent of the fact that a water body is in a protected area or not. Therefore any exemptions that are related to achieving the WFD objectives (no deterioration and reaching good ecological status/potential and good groundwater status) can be applied if certain conditions are met. In Art. 4.1.(a) and (b) there is a clear reference to the application of extensions determined in accordance with Art. 4.4 (and to the application of Art. 4.5, 4.6 and 4.7). Art. 4.4 WFD allows extending the deadlines where the improvements cannot be achieved in time because they are: technically infeasible (a maximum extension of 12 years, i.e. until 2027), or disproportionately expensive (a maximum extension of 12 years, i.e. until 2027), or not possible due to natural conditions, but this is only possible provided that "no further deterioration occurs in the status of the affected body of water" (Art. 4.4), "the application does not permanently exclude or compromise the achievement of the objectives of the WFD in other bodies of water within the same river basin district" (Art. 4.8) and "[the application] is consistent with the implementation of other Community environmental legislation" (Art. 4.8). Therefore, the use of extensions needs to be coherent with the objectives and measures established under the BHD and the implementation of water-related measures should be well coordinated so that both objectives can be met. In any case steps must be undertaken to ensure that the application of extensions "guarantees at least the same level of protection as the existing Community legislation" (Art. 4.9 WFD). The WFD is also clear in that the application of exemptions must be indicated and justified in the river basin management plans. 2) Provisions related to Art. 4.1.(c) WFD for protected areas Art. 4.1.(c) WFD stipulates that for protected areas "Member States shall achieve compliance with any standards and objectives at the latest 15 years" after the WFD entered into force, "unless otherwise specified in the Community legislation under which the individual protected areas have been established". This means that all standards and objectives of the relevant Community legislation, including the water-related objectives linked to the achievement of favourable conservation status of species and habitats in water-dependent Natura 2000 sites, need to be implemented as a rule by Article 4.4 to 4.7 contain a number of limited derogations to the WFD requirements for specific water bodies under certain circumstances. When such derogations are applied MS have to ensure that this is consistent with other EU environmental legislation and guarantees at least the same level of protection available under existing EU legislation. This includes both the Habitats and Birds Directives. Other non-water related BHD objectives falling outside the scope of the WFD are not affected by the deadlines of the WFD. Other exemptions/derogations are explained in Chapter 4 of this document. 16 December 2011

17 Case study Restoration of the Lippe floodplains, North Rhine-Westphalia (Germany) The Lippe is a river of 215 km in length draining a catchment of 4800 km 2 in North Rhine- Westphalia. The land use in the catchment is dominated by agriculture (47% arable and 17% pasture) with significant areas of human settlement (15%) and forestry (17%). The river receives discharges of treated wastewater, cooling water from the power industry and salt water drainage from coal mining. Past development has encouraged the channelisation of the river which was cut unnaturally deep requiring bank reinforcement. The combined effect of this activity was to disconnect the river from its natural floodplain. In 1990, the state of North Rhine-Westphalia started a programme of floodplain restoration aimed at preserving and restoring floodplains and stream systems as natural veins in the landscape. The programme comprises a wide range of individual measures appropriate to the stream type and its local ecology that together deliver the development goals set for the river system. Today large parts of these rivers and floodplains are Natura 2000 sites and the many measures implemented contribute both individually and in combination to the achievement of the objectives of the BHD and WFD. One of the measures that has contributed significantly to the floodplain restoration is a process of land consolidation. This process is facilitated by a legal instrument that allows landowners to exchange of land within the floodplain zone with land outside the zone according to a land consolidation plan. Once the land within the floodplain zone has been secured, measures to allow a more natural pattern of flooding can be reinstated. Floodplains restored in this way have resulted in improvement in the status of many target species. While the success of the floodplain restoration is demonstrable, the timescales for the improvements are long (c.20 years) such that the use of extensions under the WFD to 2027 are likely. Further information on part of the Lippe restoration project is available in German at: 3 Differences in the scope of WFD and BHD 3.1 Which are the objects / management units addressed in the directives? The criteria for the delineation of water bodies and Natura 2000 areas are different as the purpose of the two directives is also different. The WFD addresses all surface waters: rivers, lakes, transitional waters 7 and coastal waters 8 (called water categories in the WFD). These water categories are divided into surface water types that have been defined using selected abiotic criteria (listed in Annex II, 1.2 WFD). Examples of such types are: "small gravel-dominated lowland rivers", "oligotrophic, stratified Alpine lakes" or "inner coastal waters of the Baltic Sea". The surface water types are divided into water bodies which form the basic unit for water management under the WFD. Water bodies are discrete and significant parts of surface water, e.g. a section of a river, a lake or part of a lake that can be attributed to one status class, e.g. good ecological status 9. Considering protected areas in the delineation of water bodies is considered best practice. CIS Guidance Document No. 2 on the identification of water bodies recommends that the water bodies are delineated as far as possible taking into account the protected areas, because those introduce additional objectives: " there are additional objectives to be considered for water bodies which are 7 'Transitional waters' are bodies of surface water in the vicinity of river mouths which are partly saline in character as a result of their proximity to coastal waters but which are substantially influenced by freshwater flows." (Art. 2.6 WFD) 8 'Coastal water' means surface water on the landward side of a line, every point of which is at a distance of one nautical mile on the seaward side from the nearest point of the baseline from which the breadth of territorial waters is measured, extending where appropriate up to the outer limit of transitional waters.' (Art. 2.7 WFD) 9 CIS Guidance Document No. 2: Identification of Water Bodies, section December

18 also fully part of a protected area. Hence, the existing boundaries of protected areas may be considered for the identification of water bodies under the Water Framework Directive. ( ) In case a water body would not fully be inside or outside a protected area, it may be considered to sub-divide the water bodies into two parts so that the boundaries coincide". The WFD also addresses groundwater. Groundwaters are divided into water bodies which form the basic water management unit under the WFD. A groundwater body is a discrete volume of groundwater in one or several aquifers that can be attributed to one status class. The Habitats Directive focuses on so-called Natura 2000 sites (sites of Community importance under the HD and SPAs under the BD), and the species and habitats it protects. A site is "a geographically defined area whose extent is clearly delineated" (Art. 1(j) HD). A site of Community importance is a site "which, in the biogeographical region or regions to which it belongs, contributes significantly to the maintenance or restoration at a favourable conservation status of a natural habitat type in Annex I or of a species in Annex II " (Art. 1(k) HD). A SPA is a territory designated by the Member State for the conservation of the bird species listed in Annex I BD and migratory bird species taking into account their protection requirements in the geographical sea and land area where the Directive applies (see Art. 4.1 BD). In the Habitats Directive, natural habitats are defined as terrestrial or aquatic areas distinguished by geographic, abiotic and biotic features 10. This includes open sea and tidal area habitats as well as freshwater habitats (standing waters and running waters). Correspondences between WFD categories and HD habitat types can be seen in Table 1, but there is no direct correspondence between water body types of the WFD and habitat types of the HD. The typology of water bodies required under the WFD is much more detailed and requires the consideration of a number of different abiotic parameters (see Annex II, 1.2 WFD). As all waters are divided into water bodies, all aquatic Annex I habitats of the Habitats Directive are part of water bodies. In a water-dependent Natura 2000 site, the aquatic Annex I habitats of the Directive can be included in either one or in several water bodies. In many cases, the Natura 2000 sites are much larger than the water bodies and the same site may include several water bodies. But whatever the relationship between the water body(ies) and the Natura 2000 site(s) is, it should not pose any particular problem in managing WFD and BHD objectives. As a final point it should be noted that including small water bodies such as ponds in the programme of measures would actually make achieving Habitats and Birds Directive s objectives significantly easier, because they would be directly included in the coordination process of WFD and BHD programmes of measures. 10 This definition is similar to one given in the CBD where an ecosystem is a dynamic complex of plant, animal and microorganism communities and their non-living environment interacting as a functional unit. 18 December 2011

19 Table 1 Examples of habitats listed in the Habitats Directive and their relationship to the water categories of the Water Framework Directive 1 Examples of habitats listed in Annex I of the Habitats Directive Relevant WFD category 2 1. Coastal and halophytic habitats 11. Open sea and tidal areas Sandbanks which are slightly covered by sea water all the time Coastal or transitional waters Posidonia beds * Coastal waters Estuaries Transitional waters Mudflats and sandflats not covered by seawater at low tide Coastal or transitional waters Coastal lagoons* Transitional waters Large shallow inlets and bays Coastal or transitional waters 3. Freshwater habitats 31. Standing waters Natural dystrophic lakes and ponds Lakes 32. Running water - sections of water courses with natural or semi-natural dynamics (minor, average and major beds) where the water quality shows no significant deterioration Fennoscandian natural rivers Rivers Alpine rivers and the herbaceous vegetation along their banks Rivers Constantly flowing Mediterranean rivers with Glaucium flavum Rivers Water courses of plain to montane levels with the Ranunculion fluitantis and Callitricho-Batrachion vegetation 1 Some other habitats of Community Interest may also be influenced by river basin management planning, e.g. fens, humid (usually riverine) meadows or floodplains, i.e. the typical "wetlands". Rivers 2 Note: The typology of surface water bodies is much more detailed than the WFD categories given here Case study Ecological basis for the conservation of the Aquatic Epicontinental Habitat types of Community Interest (HCI) Standing Waters (Spain) In an attempt to secure the achievement of the objectives of the WFD and the BHD for standing waters (lakes) in Spain, the Spanish Ministry of Environment and Rural and Marine Affairs (MMA) undertook a project to define and characterise the inter-linkages between HD Annex 1 lake habitat types and WFD lake water body types on an ecological basis to meet the HD objective of Favourable Conservation Status (FCS) and the WFD objective of Good Ecological Status (Potential) (GES(P)). The HD requires Member States to commit to maintain or restore natural HCIs (annex I of the HD) at a Favourable Conservation Status (FCS). The conservation status of a natural habitat will be taken as 'favourable' when: Its natural range and areas it covers within that range are stable or increasing, The specific structure and functions which are necessary for its long-term maintenance exist and are likely to continue to exist for the foreseeable future, and The conservation status of its typical species is favourable. The HD also establishes that conservation of HCIs must be based on their environmental requirements. The WFD definition for GES(P) also includes reference to the structure and functioning of ecosystems and this provides a link between the FCS and GES(P) objectives. The work in Spain included the characterisation of the ecological functioning of the main types of lakes, lagoons, ponds and wetlands in Spain, their association to HCIs considered by Annex I of the HD and to the water body types defined for the WFD, as well as comparisons of the goals to be achieved by both Directives for aquatic ecosystems, and the compatibility and synergies of the systems developed for the evaluation of the conservation status or the ecological status following both European Directives regarding epi-continental aquatic lake ecosystems. Further information (in Spanish) available at: ologicas_habitats/index.htm December